The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 37

CARSON V. HURT

were undertaking to secure releases by the payment of a proper re-
lease price, the plaintiff wrote: "I can't release the land until I am
paid $4 per acre." Subsequently he wrote: "You will have to pay $5
per acre to get releases." At one time Hurt wrote the purchaser that
there was $30,929.85 "you are due me without any further releases."
In other words, according to his statement, on May 26, 1911, he had
executed releases, receiving by $30,929.85 less than he had a right to
demand. No complaint can be made against the execution by him of
such releases, but to charge the persons whose lands had not been re-
leased with an additional $30,929.85, and require its payment, before
releases to them would be executed, would be to entirely destroy the
rights which the provision under consideration undertook to fix.
The sales to appellant were made in 1907 and early in 1908. Subse-
quent to these sales their vendors (the purchasers) paid off the notes
to Garrett, aggregating $106,058 80, which they had assumed when the
land was purchased from Hurt. It is insisted that this payment did
not reduce the amount which appellants would have to pay in order
to entitle them to releases. It is suggested that the status is the same
as if they had contracted to pay a fixed and certain sum before they
were entitled to releases, and that they were not entitled, under any
circumstances, to have this amount reduced by payments by some-
body else. These subpurchasers have warranty deeds from the per-
sons who paid off the notes executed by Hurt, and which they had
assumed. The payment of these notes made their obligations to their
vendees (the subpurchasers) good pro tanto. If they had paid off
all their obligations to Hurt, the warranties of the deeds would have
been made good. If they had paid, as they contracted, not only would
the amount required for the releases have been reduced, but would
have been wiped out entirely. Indeed, the necessity for individual
releases would have been eliminated. It could just as well be said
that the purchasers (from Hurt) could recover from the subpurchasers
amounts paid by them which reduced the amount required to be paid to
secure releases for subpurchasers as to suggest that payments made by
the purchaser did not have the effect of reducing the amount required
to be paid by the subpurchaser for releases. The obligations were
the obligations of the purchaser. It was contemplated that they should
be paid. It was contemplated that the subpurchaser should make his
payments to the purchaser. The release clause was made for the con-
venience of the purchaser and the safety of the subpurchaser.
Each appellant has already paid to the purchaser a sum largely in
excess of that required to pay his proportionate part of all the liens
upon the land, including the notes of Hurt, which were assumed, and
the notes to Hurt, for a part of which judgment is now rendered. To
illustrate: The proportionate part of the original lien chargeable
against the section sold to appellant Forkenbrock was $2,176. He
has already paid $4,560 on his land, and he is now called upon, in addi-
tion, to pay $2,176 and interest and attorney's fees. The money which
he paid was used in the discharge of the $106,058 80 lien, but he is not
to get any benefit, so far as a release is concerned, from the payment.
The appellants in this case were subpurchasers of about 12,000 acres of